Handling of rape and pedophilia proceedings: investigating judge Makha Barry exposes the flaws in the system…

Despite a law considered “excellent”, cases of rape and pedophilia struggle to result in convictions. Investigating judge Makha Barry exposed the flaws in the investigation and called for an overhaul of practices.

Investigating judge in the 2nd chamber of the high court of Dakar, Makha Barry analyzed the flaws in the Senegalese judicial system in the face of crimes of rape and pedophilia. From the outset, he maintained that the 2020 law criminalizing these offenses is “excellent”.

But, he noted with regret, “its conviction rate is only 28.8% compared to the stock of cases under investigation”. Thus, he asserted: “The effectiveness of a law is not measured by the applause when it is adopted, but by its capacity to result in convictions.”

According to him, this situation does not reflect a lack of competence of judicial actors, but rather a structural problem. “Rape cases are treated like classic criminal cases, even though they are at the crossroads of psychology, forensic medicine and social action,” he explained.

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Continuing his explanations, he highlighted the flaws in the preliminary investigation. According to him, this is a continuous process, and it is from the police phase that the difficulties appear. “Victims are often unwelcome, sometimes in common rooms where there are a lot of people. However, the memory of a traumatized person is reconstructive and not photographic,” he explained, regretting at the same time the multiplication of poorly conducted hearings.

“The first hearing is the most valuable. Each additional hearing can alter the victim’s speech, especially when it is a child. The victim’s words change over the course of the interrogations,” he underlined. Another deviation noted: the use of leading questions by investigators, which guide the answers. The magistrate recommends, conversely, open questions allowing the victim to freely relate the facts.

In his explanations, he also returned to the phenomenon of astonishment, specifying that the absence of physical resistance during a sexual assault may be due to an involuntary neurobiological reaction. “To infer consent because the victim did not defend herself is a medically false premise,” he warned.

Specific support for child victims of rape

Concerning minors, the investigating judge underlines the need for an adapted approach. According to him, the child’s story, which is more fragile, can be influenced by those around him, particularly in cases of domestic violence. “In cases of intra-family rape, the child may repeat what his mother told him to say, often under economic pressure or influence,” he recalled.

To this end, he recommends the adoption of specialized hearing protocols, like the international “Nichd” model, based on a non-directive approach. He also cited the French example of pediatric reception units (Uaped), where the child is only interviewed once, in secure and recorded conditions, in order to preserve the integrity of his speech.

The magistrate also warns of the frequent loss of material evidence. According to him, biological samples, essential particularly in the event of suspicion of chemical submission, must be taken within 72 hours.

He also recalls that a medical certificate mentioning a “normal examination” does not mean the absence of rape, but calls for a thorough analysis of the context. According to him, digital evidence constitutes a lever that is still under-exploited. He recommends quickly seizing the telephones of the victim and the suspect in order to exploit the exchanges and contextual elements.

“At the judicial stage, inadequacies in the initial investigation often lead to acquittals. To remedy this, we need real “probative engineering”,” declared the investigating magistrate. Before adding: “The judge must not limit himself to administering the evidence, but construct it from a set of clues, including the notions of constraint, threat or dependence.”

Evidence often compromised

He also insisted on the need to take into account the victims’ subsequent behavior, which is often misinterpreted. Based on European standards, he recalls that the analysis must be focused on the absence of consent, and not on the resistance of the victim. “What is not done at the beginning cannot be made up for later,” he insisted.

The magistrate also made several recommendations, including the establishment of standardized hearing protocols, the systematization of biological samples, the specialization of judicial actors and the systematic use of psychological expertise, particularly for minors.

He also calls for avoiding using pre-trial detention as a simple means of “freezing” fragile evidence, believing that this leads to unjustified detentions lasting several years, often followed by acquittals.

By Aliou DIOUF